I’ll start with the good news — the Presidential race remains stable and highly Biden favorable at this point. Nate Cohn at the New York Times notes that one of the most substantial national polls showing movement towards Trump recently turned out to be a sampling anomaly (you can read the story for the details, which I could get wrong.) This means that the narrative that the national race was getting tighter no longer holds up, Biden has a pretty steady 7 point lead nationally in the polling averages.

At the state level, this translates into Biden leads in the polling averages beyond the typical margin of error (three points) in the critical states of Michigan, Wisconsin and Pennsylvania, putting Biden on track to clear 270 electoral votes. For added comfort, Biden is also holding a 5 point lead in Arizona. What should be giving the Trump campaign nightmares are all the extra electoral votes Biden is contesting, in states where he holds a small lead or trails narrowly. Biden currently leads in Florida, Iowa, North Carolina and Ohio, trailing within the margin of error in Texas and Georgia. Biden needs none of these states to win, if the current polling averages are accurate.

There are five more positive factors in Biden’s favor: he holds a significant cash advantage over Trump heading into the final seven weeks that is growing in the wake of the Trump Supreme Court ram through, COVID-19 infection rates are rising, the Dow Jones industrial average has been falling in recent days, the first round of the public polling finds that Trump’s efforts to replace Ruth Bader Ginsburg on the Supreme Court pre-election are extremely unpopular, and, finally, the Presidential debates will begin soon and the Trump campaign has done a horrible job of setting expectations for them. We enter the home stretch with Trump in terrible shape and, from all seen evidence, likely to perform even worse in the days ahead.

Ok, deep breath, because this is not intended to be a good news blog post. I think we’re heading towards a very dark moment in American history and we all need to be ready for it. To begin, please read this New Yorker piece by legal analyst Jeffrey Toobin. It outlines the wide variety of legal challenges that have already begun across the nation to election laws put in place this year. To be extremely reductive, the core Republican argument this election is going to be that the U.S. Constitution and federal laws set election day as November as the first Tuesday in November, so if a ballot isn’t counted by that day, too bad.

Of course this argument holds no historical value. It often took weeks in the early days of our republic for all the paper ballots to be counted. There’s no good reason why mail ballots postmarked by election day should not count — and in fact, Republicans typically argue every electoral cycle for the inclusion of military ballots often mailed from overseas that take longer to process.

But the validity of this argument and many, many others almost doesn’t matter. What Republicans could very well do in this election is muddy up the process enough to make extremely stark action seem credible. For example, in the states of North Carolina and Wisconsin, it’s entirely possible that the state legislatures could step in and simply declare Trump the winner of their electoral votes under the argument that the election was so close and so much “fraud and abuse” had taken place, the legislature felt compelled to act. It’s Constitutionally permissible for a state legislature to do just that.

The nightmare scenario is that mail ballots come in very slowly this fall, and just counting the election day, early voting and mail to that point vote, Donald Trump holds an Electoral College majority on the evening of election day. Imagine that Fox News declares him the winner based on those totals.

This will lead to a battle in the streets between the “don’t steal our victory” Republicans who want to shut down the counting of mail ballots and “count every vote” Democrats who are confident of victory once the real total rolls in. This could all end up the Supreme Court where, what do you know, Republicans will soon hold a 6-3 advantage and could issues another one-off, don’t count this decision while making any future precedents, ruling that hands the victory to Trump … even if he loses by 5 million popular votes and would ultimate lose the Electoral College if the votes were counted fairly.

Bernie Sanders is warning about this scenario now and I think this is a very wise move on his part. The public needs to be informed of this nightmare before it plays out and not get duped by the Trump line that any lead on Election Night should equate to being sworn in on January 20, 2021. Maybe if we fully expect these shenanigans we can be ready to short circuit them.

Of course, real hearings for the Supreme Court nominee could help. That would give Democrats the opportunity to put Trump’s nominee on the spot about election rulings and extract from the nominee an agreement to recuse herself from a ruling. There’s simply no way that Trump should be allowed to install a justice who could turn around and ensure his victory weeks later.

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